There is no reason why judges should be the only ones consulted on the Upper House

Some of the language on both sides of the spat between the judges and the Minster for Justice this week was overblown and some of the off-stage interventions unhelpful. It is relief that, for now at least, further tensions between these two constitutional arms have been avoided.

The Minister for Justice's responses to the judicial comments reminds one, however, of how resistant this government is to parliamentary or constitutional restraint. Alan Shatter's tone echoed that used when trying to restrict judicial oversight during the Oireachtas inquiries referendum in late 2011.

One interesting outcome of the week's scrimmages is that they threw some welcome light on the constitutional consequences of the Government's proposal to abolish Seanad Éireann and, in particular, its implications for the manner in which a judge could be impeached.

This was one of the issues about which the Association of Judges of Ireland complained there had been a lack of consultation. When pressed in the Dáil on the matter on Wednesday the Taoiseach made a commitment that the judiciary will be consulted on the referendum, or at least this aspect of it, before the referendum Bill is published.

That is a welcome development but, as things stand, means the judiciary will end up being the only group outside Cabinet to have an input into the process: it seems the legislation will be presented to everyone else, including government deputies and senators, as a fait accompli.

The constitutional article dealing with judicial impeachment is just one of perhaps 70 articles that will require amending if Seanad Éireann is abolished.

Some of provisions, like the power to impeach or substitute for the President could, be dealt with by relatively uncontroversial alternative arrangements. However, other areas of the Seanad's role including its part in domestic and European law-making will require more radical constitutional change in a way which will inevitably give dramatically increased powers to Government minsters.

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The Seanad is one component of the delicate balancing within our bicameral democratic system. Under a unicameral scenario ministers like Alan Shatter, once they get their pet proposals through Cabinet, will be able to rush them through the Dáil where they have a tightly whipped majority, without the benefit of the reflection and second opinion that the Seanad, even in its currently weakened state, can provide. We know that on that night in October 2009 when Enda Kenny suddenly announced this proposal to abolish the Seanad at a Fine Gael dinner he had not consulted his own front bench. Most were opposed to the proposal but have since fallen in line.

Since then Fine Gael Ministers have been deaf to voices within their own party who dare to question the wisdom of mutilating the Constitution in this way.

Only last week Young Fine Gael at a policy conference voted decisively against Seanad abolition. On Thursday former Minister Gemma Hussey was among those calling on Kenny to postpone his proposal for a referendum in light of the issue highlighted by the judges.

The attitude of Ministers to consultation on substantial constitutional issue is starkly illustrated by the Government refusal to put the status of the Seanad to the convention on the Constitution.

The Government recently announced that there will be a referendum on the Seanad in late September. If it’s to have any real purpose the convention on the Constitution should surely be debating this dramatic proposal for a reconfiguration of our constitutional framework. If it is to have any credibility the convention should be allowed, or insist on being allowed, to deliberate not only on how judges are impeached but on all the more significant constitutional changes to which the abolition of the Seanad would give rise

It undermines the convention to suggest that on this significant constitutional step its voice cannot be heard.

The convention is entitled once it has completed deliberations on the list of items assigned to it by the Government to consider “any other amendments”. This, it seems, could in theory include reform of the Seanad. However, on the basis of its published timetable the convention will not get to consider it until mid-October, some weeks after the referendum apparently is proposed late September.

Not putting the Seanad’s status to the convention also undermines the Labour Party position. The Labour Party manifesto for the last election promised to propose “to the constitutional convention that Seanad Éireann be abolished”.

I have long been an advocate of political reform generally and reform of the Seanad in particular. I make no secret of my involvement in a growing campaign to retain and radically reform Seanad Éireann as means of easing the stranglehold held by the executive branch in general and the cabinet in particular on our parliamentary process.

With others, I have written to Tom Arnold asking that he discuss with the convention membership putting the Seanad on their agenda well in advance of the proposed referendum, or that in the alternative they ask the government to postpone the referendum. There is no reason why the judges should be the only ones consulted on the future of the Seanad.

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